RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03765
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060601

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Technical Engineer, medically separated for “chronic radiating back pain” with a disability rating of 10%.  

CI CONTENTION:  The CI requests the Board consider all conditions.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20060322	VARD - 20070208	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Back Pain	5237	10%	Intervertebral Disc Degeneration, Lumbar Spine with Thoracic Spondylosis	5243	10%	20070124	
Headache Syndrome	Not Unfitting	Tension Headaches	8199-8100	10%		
Incomplete Emptying of Bladder		Loss of Urinary Control	7512	20%		
Anxiety Disorder		Generalized Anxiety Disorder	9400	30%	20070123	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Radiating Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain condition began in February 2004, during a deployment where wearing a HMMWV stabilization strap across his lower back.  He developed back pain with radiation into his left leg and underwent two nerve block procedures at L-S1 in April and July 2005.  Following the procedures he developed bilateral leg symptoms and also began complaining of frank urinary and fecal incontinence.  Diagnostic imaging studies (MRI), in June and October 2005, showed no significant disc protrusion, normal disc height with minimal disc drying at L5-S1 and facet narrowing at L3-4 (degenerative disc disease).  

At the time of the neurosurgery clinic appointment on 19 September 2005, the CI reported back pain radiating through both heels with numbness and tingling and urinary and fecal incontinence.  On examination the CI displayed a normal gait and no abnormal spinal contour.  The examiner noted a decreased response to tactile stimulation of the legs and feet.  Coordination/cerebellum abnormalities were noted.  Provocative maneuvers for signs of radiculopathy or radiating pain due to spinal nerve root or sciatic nerve involvement were positive bilaterally.  Gait, reflexes and motor testing were normal.  Range of motion (ROM) was stated as full.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for a MEB.  The MEB forwarded “lumbago” for PEB adjudication.  

The MEB NARSUM examination on 1 December 2005, 6 months prior to separation, noted complaints of pain in the lower back with continued leg weakness and paresthesias.  The CI had refused an anal sphincter electromyogram (to evaluate incontinence) and indicated that he did not ever experience fecal or urinary incontinence, and that any previous perception of such by his physicians had been a misunderstanding.  The remainder of the electrodiagnostic examination was reported as normal.  Physical examination showed tenderness to palpation and subjective sensory loss in a non-dermatomal pattern in the lower extremities.  There was normal gait, reflexes, and lower extremity motor strength.  ROM was painful with forward flexion of 75 degrees (normal 90) and combined 200 (normal 240).  At the time of the neurosurgery clinic appointment on 15 February 2006, the CI reported bilateral lower extremity pain and numbness for 18 months.  On examination, the CI had full ROM with a normal gait and no objective evidence of neuropathy or radiculopathy.  

At the 24 January 2007 VA Compensation and Pension (C&P) evaluation, performed 8 months after separation, the CI reported low back pain that occurred constantly rated 8/10, in addition to weakness and numbness traveling down both legs.  The back pain did not cause any incapacitation.  The CI denied incontinence, but had symptoms of frequent urination.  Physical examination showed a normal gait and posture with no evidence of radiating pain on movement, muscle spasm or tenderness on palpation.  Provocative maneuvers for signs of radiculopathy or radiating pain due to spinal nerve root or sciatic nerve involvement were negative.  Motor and sensory functions were normal.  There were “no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.”  ROM was painful with forward flexion of 75 degrees (normal 90) and combined 195 (normal 240).  X-rays showed minimal thoracic arthritis.  The CI underwent back surgery with L5-S1 fusion in May 2007, 12 months after separation, followed by a lumbar decompression, fusion and decompression at L5-S1, in September 2007, for ongoing pain and lower extremity radicular symptoms.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic radiating back pain condition 10%, coded 5237 (lumbosacral strain), citing limited forward flexion.  The VA rated the back pain condition 10% coded 5243 (intervertebral disc syndrome), based on the VA C&P examination 8 months after separation, citing limited forward flexion.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the NARSUM and VA C&P examinations.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI complained of leg weakness and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and the sensory changes did not affect his job.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic radiating back pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that headache syndrome, incomplete emptying of bladder and anxiety disorder were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Although headaches were mentioned in the commander’s statement, the incomplete emptying of bladder and anxiety disorder were not addressed.  Additionally, none of the conditions were profiled and both judged to meet retention standards.  The aforementioned conditions were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chronic radiating back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended headache syndrome, incomplete emptying of bladder and anxiety disorder conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140701, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

MEMORANDUM FOR Commander

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXX, AR20160011773 (PD201403765)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review
(DoD PDBR) recommendation and record of proceedings pertaining to the subject
individual. Under the authority of Title 10, United States Code, section 1554a, I accept the
Board's recommendation and hereby deny the individual's application.
This decision is final. The individual concerned, counsel (if any), and any Members of
Congress who have shown interest in this application have been notified of this decision by
mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF:
( ) DoD PDBR
( ) DVA